On Principle, Roberts Could Defend Assisted Suicide

Washington, July 22 - The conservative views that propelled John Roberts to aSupreme Court nomination also could make him a defender of the nation's onlyassisted suicide law when it is tested before the high court this fall,proponents of the Oregon law say.<> On many issues, little is known about Roberts' views. But in a 2003opinion, he expressed a view held dear by many conservatives: that the reachof federal power under the Commerce Clause of the Constitution should bestrictly limited.

In that case, Rancho Viejo v. Norton, Roberts suggested that the federalgovernment overstepped its constitutional authority by applying theEndangered Species Act to protect the habitat of a toad that is indigenousto California.

Proponents of Oregon's assisted suicide law say Roberts' reasoning inthe Rancho Viejo dissent should lead him to their view. They say theirargument in favor of assisted suicide is essentially the same -- that thefederal government has no authority to interfere in an issue reserved tostate and local authorities and that affects only the citizens of one state.

"Hopefully, if he is willing to pre-empt the government's right underthe Endangered Species Act to protect wildlife, then he would rule similarlyin this case," said Rep. Peter DeFazio, D-Ore.

President Bush on Tuesday (July 19) picked Roberts, a judge on the U.S.Circuit Court of Appeals for the District of Columbia, to replace retiringJustice Sandra Day O'Connor, who was often the pivotal fifth vote incontroversial decisions. If confirmed, Roberts would ascend to the highcourt just as it takes up the Bush administration's challenge to Oregon'sassisted suicide law.

The central question in the Oregon case is whether the federalControlled Substances Act can be used to prevent doctors from prescribinglethal doses of painkilling drugs to patients who are terminally ill.

Former U.S. Attorney General John Ashcroft challenged the Oregon law in2001. He asserted that assisted suicide was not considered a "legitimateuse" of controlled drugs and that doctors could be prosecuted under federaldrug laws.

But lower courts so far have come down on the side of the Oregon law.They have held that Congress had no intention of regulating medical practicewhen it passed the drug law.

"This is not a case that requires a swing vote to win," said EliStutsman, a Portland, Ore., lawyer who has defended the law. "We are dealingwith something that appeals to conservatives for reasons having to do withfederalism."

Roberts' view of a limited federal government is shared by many at thehighest levels of the Bush administration. But on some issues, that view canconflict with the values of social conservatives, many of whom say thefederal government should intervene when states fail to protect life.

Abortion is the most prominent example of such a potential conflict, andon that issue Roberts' personal views are murky. As a deputy solicitorgeneral in the administration of President George H.W. Bush, he co-authoreda brief that said Roe v. Wade, the landmark Supreme Court decision thatlegalized abortion, "was wrongly decided and should be overruled."

But at his 2003 confirmation hearing for the appeals court, he said,"Roe v. Wade is the settled law of the land. ... There's nothing in mypersonal views that would prevent me from fully and faithfully applying thatprecedent."

The Oregon assisted suicide law is another such a case, according tothose who hope the Supreme Court will uphold the federal government'sauthority to override the state statute.

Richard Doerflinger of the U.S. Conference of Catholic Bishops declinedto comment directly on Roberts' nomination. But he said it probably wouldn'thave an impact on the case. "We were going to win anyway," he said.

Sen. Gordon Smith, R-Ore., the only member of the Oregon congressionaldelegation who has supported the administration's view, said speculationabout the outcome of the case would not be made clearer with Roberts'appointment.

Smith noted that prospects for the Oregon law could be clouded by aSupreme Court ruling last month that clamped down on state medical marijuanalaws. The court decided 6-3 that state-sanctioned marijuana smokers could bepunished under federal law, possibly indicating that states' rights endedwith federal drug laws.